MUTIU ALAWIYE & 6 ORS vs. AMIDU ALHASSAN AMIDU MORO MUNIRU [2017]DLCA4541

Date	2017-06-15
Suit No.	CIVIL APPEAL: H1/13/2017
Citation No.	[2017]DLCA4541

V. D. OFOE JA (PRESIDING)

A .M. A. DORDZIE (MRS.) JA

M. M. AGYEMANG (MRS.) JA

MR. FRANK ADEEKU FOR DEFENDANTS/APPELLANTS

PUOZUING & ASSOCIATES FOR PLAINTIFFS / RESPONDENTS

[2017]DLCA4541
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													<main id="main" class="content" style="min-height: 60rem" >MUTIU ALAWIYE &amp; 6
ORS<o:p></o:p>(DEFENDANTS / APPELLANTS)<o:p></o:p>vs.<o:p></o:p>AMIDU ALHASSAN AMIDU
MORO MUNIRU<o:p></o:p>(PLAINTIFFS / RESPONDENTS)<o:p></o:p>[COURT
OF APPEAL (CIVIL DIVISION), ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

CIVIL APPEAL: H1/13/2017&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE: 15TH JUNE, 2017<o:p></o:p>

PUOZUING
&amp; ASSOCIATES FOR PLAINTIFFS / RESPONDENTS<o:p></o:p>

</div>AGYEMANG JA:<o:p></o:p>In
this appeal against the judgment of the High Court, (Land Division) Accra,
delivered on the 15th of June 2016, the defendants/appellants pray for the
judgment to be set aside and for judgment to be entered for them.<o:p></o:p>These
are the antecedents of this case: In a suit instituted at the court below, the
plaintiffs/respondents (hereafter referred to as the plaintiffs) sought inter
alia, a declaration of title to a parcel of land, the alleged property of one
Amidu Butcher, the grandfather and great grandfather of the first and second
plaintiffs respectively. The it was the pleading of the plaintiffs that the
land Amidu Butcher allegedly acquired by purchase from one Mama Gaya in 1924,
was bounded on the north by Alagi Shaibu Alawiye’s property measuring 40 feet
6ins more or less on the south by a public lane measuring 40 feet 6 ins more or
less, on the east by the property of Menkano measuring 43 feet 10 ins more or
less and on the west by Ajorke’s property measuring 43 feet 10 ins more or
less. The said parcel of land was following the said purchase, registered at
the Registry of Deeds as No. 298/1924.<o:p></o:p>It
was the case of the plaintiffs that the patriarch, Amidu Butcher used the land
for his cola nut business and also as temporary accommodation for his suppliers.
It was further alleged that in the course of time, one Alhaji Nuhu Shaibu
Alawiye, the father of the first defendant, began to keep his horses on the
land and also, that other businesses sprung up on the land. It was the pleading
of the plaintiffs that they were well aware of the presence of these persons on
the land, and that the said “squatters” remained on the land at their
sufferance. He plaintiffs averred that it was when they were ready to develop
the land that the plaintiffs per counsel, wrote to the said “squatters”: the
4th, 5th, 5th and 7th defendants to vacate the land. <o:p></o:p>This
eviction notice was resisted, not by the alleged squatters, but by the
defendants/appellants (referred to hereafter as the defendants): descendants of
the said Alhaji Shaibu Alawiye whose land, said to adjoin the disputed land,
was developed. A house named after that patriarch: the Alhaji Shaibu Alawiye
Memorial House stands thereat. In response to the plaintiff’s pleading, the
first, second, and third defendants to whom the alleged squatters paid rent,
laid claim to the disputed land, insisting that the disputed land was situate
at Knutsford Avenue, and not near Selwyn Market, as the plaintiffs alleged<o:p></o:p>It
was by reason of this challenge of identity and location, that the court, upon
the application of the defendants, ordered the appointment of a surveyor who
was instructed to superimpose the respective plans held by the parties in a
composite plan in order to identify the land in dispute.<o:p></o:p>The
said surveyor, having gone onto the land with the parties for a survey, carried
out the assigned task by drawing up a composite plan showing the parcels of
land identified by the parties, and superimposing thereon, the respective plans
of the parties.<o:p></o:p>&nbsp;It was the evidence of the surveyor that from
his record, the plaintiffs’ site plan had a dimension of 29 feet by 75 feet,
and the defendants’ 110 feet by 100 feet. Refuting the plaintiffs’ suggestion
that there was a public lane on the ground, he added that the pieces of land
claimed by the two parties overlapped slightly. The land shown by the
plaintiffs he said, was undeveloped. With respect to the land pointed out by
the defendants, however, he testified that save for the place overlapping the
plaintiff’s land, the defendants’ land was fully developed.<o:p></o:p>&nbsp;It was the case of the defendants that the
patriarch Alawiye acquired the disputed land (which they maintained was at
Knutsford Avenue), Accra, from one Salihu Jimba in 1910 and traded thereat. The
said land, they averred, was developed by a Lebanese man after the death of
Alawiye and that the said gentleman built the house on which was inscribed
Alhaji Shaibu Alawiye’s Memorial House. The defendants, gave the description of
their land as: bounded on the northern part by Knutsford Avenue, the southern
part by one Alhaji, on the eastern part by the property on Brimah Davies, and
on the western part by the property on Asanatu Ominde. <o:p></o:p>It
was the further case of the defendants that the plaintiffs’ land lay within the
defendants’.<o:p></o:p>After
trial the learned trial judge entered judgment for the plaintiffs. He held that
the land in dispute was situate at Okaishie, Accra, and decreed title thereto
in the plaintiffs. He also held that the dispute was over a “public lane” which
the defendants had built upon. He further held that persons who could not use
the said “public lane” by reason of the obstruction occasioned by the
defendants’ act of building on the “public lane” had been thus forced to use
the plaintiffs’ land, thereby interfering with their possessory rights. By
reason of this alleged interference with the plaintiffs’ right therefore, the
le</main>